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by
Travis Weber

April 6, 2017

It hasn’t gotten a lot of attention, but Judge Gorsuch’s exchange with Senator Ben Sasse about international and foreign law at his confirmation hearing offers helpful clues that he’d rule properly in this area:

SASSE: As a sitting Supreme Court justice tasked with upholding the U.S. Constitution, is it ever appropriate to cite international law? And if so, why?

GORSUCH: It’s not categorically improper. There are some circumstances when it is not just proper but necessary. You’re interpreting a contract with a choice of law provision that may adopt foreign law. That’s an appropriate time . . .

Treaties sometimes require you to look at international law by their terms. But if we are talking about interpreting the Constitution of the United States, we have our own tradition and own history. And I don’t know why we would look to the experience of other countries rather than to our own . . .

And so as a general matter, Senator, I would say it is improper to look abroad when interpreting the Constitution . . .

Judge Gorsuch is absolutely right. In his answer to Senator Sasse, he has articulated a vision of the Constitution which guards against the surreptitious importation of standards from other countries which have no bearing on our Constitution (but which the Supreme Court has done from time to time).

Meanwhile, he properly admits that a foreign legal standard in a “choice of law” provision may be consulted (in these cases, the parties to the agreement have stipulated that the laws of another country shall be used to adjudicate disputes between them, and it is entirely proper to consult whatever source of foreign law has been stipulated).

He also made proper reference to treaties as a valid source of international law.

International law (laws between nations) is distinct from foreign law (the laws of a foreign nation), as properly understood, only consists of two areas.

The first is the treaty, or agreement between nations. When nations become parties to a treaty, they agree to be bound explicitly by the treaty’s terms. Yet legal activists, as they so often do in the United States with regard to the Constitution, recognize that their preferred radical policies aren’t contained within the treaty, so they twist its terms or use other mechanisms in the international legal order to push their policies, which they try to term as “law.” Yet the fact that they call them law doesn’t make them so. Just as we must guard against activist attempts to read new “rights” into statutes and the Constitution domestically, we must guard against efforts to read them into the text of treaties internationally.

The second area of international law is customary international law, which is defined as a longstanding practice engaged in by a very large number of states who engage in it because they believe they are legally bound to do so. This is a high standard and not much reaches it. But that doesn’t stop activists from trying to claim their radical policies are “customary international law.” Again, just because they say so over and over again doesn’t make it true.

Judge Gorsuch will not be hoodwinked by such shenanigans. He has articulated a limited (and proper) view of international and foreign law which shows he understands the dynamics in this area. Once again, he has shown that he will be a great originalist and is eminently qualified to be confirmed to the Supreme Court.

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by
Peter Sprigg

January 18, 2017

President Obama’s farewell address in Chicago on January 10—although overshadowed in the news cycle by President-elect Trump’s press conference in New York less than a day later—deserves some attention.

There were some interesting tidbits in the speech for those of us who seek to bring our faith to bear in the world of public policy. My former boss, Rob Schwarzwalder, quickly took the president to task for declaring that “the essential spirit of this country … that guided our Founders” was “born of the Enlightenment … a faith in reason …” In reality, the Founders were guided by faith in divine Providence, as well as a biblical worldview that included a realistic understanding of the depravity of human beings.

Perhaps we should at least be grateful that President Obama did not censor out the Creator when he quoted the Declaration of Independence, citing “the conviction that we are all created equal, endowed by our Creator with certain unalienable rights.” And after eight years of promoting a cramped vision of “freedom of worship,” Mr. Obama actually cited the broader “freedom of religion” as one of the principles of the post-World War II democratic order.

The Obama address had one over-arching theme: “the state of our democracy.” He used the word “democracy” a grand total of twenty-two times. The outline of the speech identified four “threat[s] to our democracy”—lack of economic opportunity, racial division, increasing polarization, and apathy.

I welcome Mr. Obama’s primary emphasis (appropriate under the circumstances) on over-arching principles rather than specific policy goals.

And I give him credit for laying down challenges that can apply to those on both the left and the right of the political spectrum. For example, there was this passage:

For too many of us, it’s become safer to retreat into our own bubbles, whether in our neighborhoods or on college campuses, or places of worship, or especially our social media feeds, surrounded by people who look like us and share the same political outlook and never challenge our assumptions. The rise of naked partisanship, and increasing economic and regional stratification, the splintering of our media into a channel for every taste — all this makes this great sorting seem natural, even inevitable. And increasingly, we become so secure in our bubbles that we start accepting only information, whether it’s true or not, that fits our opinions, instead of basing our opinions on the evidence that is out there.

Unfortunately, when President Obama did recite a list of policy accomplishments, it belied his professed love of democracy—at least with respect to one issue. In a long paragraph (actually, one long sentence) beginning, “If I had told you eight years ago …,” he included this:

“[I]f I had told you that we would win marriage equality … you might have said our sights were set a little too high. But that’s what we did. That’s what you did.”

Although the line drew cheers, it was historically inaccurate. “Marriage equality”—the left’s euphemism for changing the definition of civil marriage to include same-sex couples—was not something either “we” (President Obama and his administration) or “you” (the voters who supported him) achieved. Until the second to last year of his presidency, efforts by LGBT activists to achieve a redefinition of marriage in all fifty states were a notable failure in the vast majority of them.

No, nationwide marriage redefinition was not achieved by President Obama, his administration, or his supporters. It was certainly not achieved by the processes of democracy that the president extolled in his farewell address.

Instead, it was imposed upon the country by the smallest, most elite, and least democratic group imaginable—five justices on the Supreme Court, a bare one-vote majority.

Let’s look at some of the things President Obama said about democracy—and how the outcome of the marriage debate contradicts them.

For example, he declared that “the beating heart of our American idea” includes the conviction “that We, the People, through the instrument of our democracy, can form a more perfect union.” It seems, though, that Mr. Obama and the Court decided that “a more perfect union” required a different definition of our most basic social institution, and since “the instrument of our democracy” was not producing it, other means would have to be used.

President Obama also declared:

The work of democracy has always been hard. It’s always been contentious … Understand, democracy does not require uniformity. Our founders argued. They quarreled. Eventually they compromised. They expected us to do the same.

Note that this is precisely what had been happening for two decades on the marriage issue. Both politicians and ordinary citizens “argued” and “quarreled.” A few states actually redefined marriage using the democratic process. Many more formally defined marriage as the union of one man and one woman. In some cases, people “compromised” by giving some or all of the benefits of marriage to same-sex couples through civil unions or domestic partnerships. States were fulfilling their role as the laboratory of democracy. This is what the founders “expected us to do”—but it wasn’t enough for President Obama, or for the Supreme Court. Instead, they decided to “require uniformity” by imposing marriage redefinition on all fifty states.

Continuing to extol the give-and-take of democratic debate, President Obama said:

[P]olitics is a battle of ideas. That’s how our democracy was designed. In the course of a healthy debate, we prioritize different goals, and the different means of reaching them.

He then went on to caution:

But without some common baseline of facts, without a willingness to admit new information, and concede that your opponent might be making a fair point, and that science and reason matter — then we’re going to keep talking past each other, and we’ll make common ground and compromise impossible.

In referring to a “baseline of facts,” and to “science and reason,” Mr. Obama probably had in mind the liberal consensus on an issue like “climate change.” But a “common baseline of facts” on the marriage issue would have included an acknowledgment that same-sex relationships are not identical to natural marriages, and that children do best when raised by their own, married biological mother and father; and “science and reason” would have dictated that society has a greater interest in unions that can result in natural procreation than in those that never can.

President Obama spoke about the international order when he warned against

the fear of people who look or speak or pray differently; a contempt for the rule of law that holds leaders accountable; an intolerance of dissent and free thought; a belief that … the propaganda machine is the ultimate arbiter of what’s true and what’s right.

However, “the fear of people who look or speak or pray differently”—intended by Obama to refer to foreigners and immigrants—could just as easily be a warning to the left, who fear people who look like “rednecks,” speak with southern accents, or pray in faith to the God of the Bible. Advocates of marriage redefinition were outraged when Iowa voters used “the rule of law” to hold state Supreme Court justices who redefined marriage “accountable”—by removing them from office. And few social movements are as intolerant of “dissent and free thought,” or have built as effective a “propaganda machine,” as the LGBT movement, which seeks to discredit every dissenter from their agenda as being motivated by “hate.”

Finally, President Obama exhorted Americans to higher levels of citizen participation in our democracy. At the beginning of his speech, he said that Chicago was where “I learned that change only happens when ordinary people get involved and they get engaged, and they come together to demand it.” At the end, he warned:

Our democracy is threatened whenever we take it for granted. All of us, regardless of party, should be throwing ourselves into the task of rebuilding our democratic institutions. When voting rates in America are some of the lowest among advanced democracies, we should be making it easier, not harder, to vote . . .

It falls to each of us to be those anxious, jealous guardians of our democracy; to embrace the joyous task we’ve been given to continually try to improve this great nation of ours . . .

So, you see, that’s what our democracy demands. It needs you. Not just when there’s an election, not just when your own narrow interest is at stake, but over the full span of a lifetime. If you’re tired of arguing with strangers on the Internet, try talking with one of them in real life. If something needs fixing, then lace up your shoes and do some organizing. If you’re disappointed by your elected officials, grab a clipboard, get some signatures, and run for office yourself. Show up. Dive in. Stay at it. Sometimes you’ll win. Sometimes you’ll lose.

It’s good advice. I worry, though, that historians will fail to note that one of the most effective examples of such citizen activism in recent decades was the movement to define marriage as the union of one man and one woman through state constitutional amendments. “Get a clipboard, get some signatures”? In virtually every state where a constitutional amendment can be placed on the ballot through citizen initiative (that is, a petition process without the involvement of those disappointing “elected officials”), marriage amendments were placed on the ballot and adopted.

Yet President Obama and his allies did everything they could to make it harder for citizens to vote on marriage, not easier. And they celebrated when the Supreme Court overturned the constitutions of thirty states, which had been amended through that admirable citizen activism.

President Obama declared that “our nation’s call to citizenship” was “what led patriots to choose republic over tyranny.” Yet when it came to marriage, Mr. Obama was happy to choose judicial tyranny over the product of our democratic republic.

And when it came to the activism of those who sought to defend marriage, his motto was not, “Yes, we can.”

It was, “No, you can’t.”

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by
Peter Sprigg

September 2, 2016

New York’s highest state court, the Court of Appeals, ruled August 30th that the former lesbian partner of a woman who gave birth (via artificial insemination) while the couple was cohabiting could qualify as a “parent” for the purpose of seeking custody and visitation rights (Matter of Brooke S.B. v. Elizabeth A. C.C.).

In light of the 2015 decision of the U.S. Supreme Court to order a fifty-state redefinition of “marriage” to include same-sex couples (Obergefell v. Hodges), this may seem like something inevitable—merely a legal mopping-up operation. Actually, it is far more troubling, with implications that extend far beyond same-sex couples.

New York’s Domestic Relations Law says that “either parent” of a child living in the state may apply to a court requesting “the natural guardianship, charge and custody of such child.” In a case similar to the current one 25 years ago (Matter of Alison D. v. Virginia M.), the same court had ruled that “a biological stranger to a child who is properly in the custody of his biological mother” has no standing to seek visitation. Despite having upheld it as recently as 2010, the court explicitly overruled Alison D. this week.

In part, the decision was based on the fact that during the period the couple was together (2006-2010, with the baby boy being born in 2009), same-sex couples could not yet legally marry in New York. According to the opinion, the couple “lacked the resources to travel to another jurisdiction” to enter into a marriage or similar “legal arrangement.”

One is tempted to say that they must have been quite destitute—since the first state to grant civil marriage licenses to same-sex couples (in 2004), Massachusetts, borders on New York state. By the time the child was born, in June 2009, Massachusetts had repealed a 1913 law that had initially prevented many out-of-state couples from marrying there; and New York’s Gov. David Paterson had ordered state agencies to recognize same-sex unions from other states.

In fairness, though, the couple apparently did live in Chautauqua County—at the far western end of the state, about 400 miles from Massachusetts. However, it is only a little over 100 miles from Niagara Falls, Ontario—which was also giving marriage licenses to same-sex couples from the U.S. Meanwhile, New York’s high court had already recognized a right of “second-parent” adoption even for unmarried partners of a biological parent in a case decided in 1995.

All this is to say that, even for a same-sex couple, it may not have been so difficult to establish a legal family relationship by a more traditional means—either a civil marriage or legal adoption.

Family Research Council (FRC) promotes the ideal of the “natural family.” In the natural family, a man and a woman commit to one another in marriage, and their sexual union bears its natural fruit in the birth of children who are biologically related to both parents. Support for the natural family is not just based on abstract principle—there is abundant social science research showing that it tends to result in the best outcomes for children (see this recent blog post reviewing the evidence).

However, we realize that the natural family is not universal, and recognize that parental relationships are sometimes formed without marriage (as in out-of-wedlock births) or without a biological relationship between parent and child (as in adoption). These parents should have their rights respected by the state just as much as those in the more traditional natural family.

However, these have historically been the limits of how legally-recognized “parental” relationships may be established. The court’s decision in Brooke B. smashes through those limits.

Only one of the New York judges, Eugene Pigott, fully acknowledged this. Although he concurred with the outcome of the case, based on its “extraordinary circumstances,” he disagreed with the decision to overrule Alison D. “I would retain the rule that parental status under New York law derives from marriage, biology or adoption,” Pigott wrote. Until now, he said, “Our Court … rejected the impulse to judicially enlarge the term ‘parent’ beyond marriage, biology, or adoption.” Instead, they had “consistently interpreted it in the most obvious and colloquial sense to mean a child’s natural parents or parents by adoption.”

The argument for expanding the definition of “parent” to include “de facto parents” who have lived with, cared for, and formed a close personal relationship with a child is simple—namely that it may be “in the best interests of the child” to preserve that relationship even if the adult couple breaks up. This sounds emotionally appealing—but the problem is what it means for parental rights. While parental rights are not absolute—in the case of serious abuse, for example, a parent may be declared “unfit” and have those rights severed—they are normally entitled to great deference.

The court did quote from its 1991 decision in Alison D., which said that “[t]raditionally … it is the child’s mother and father who, assuming fitness, have the right to the care and custody of their child,” and granting visitation to a “de facto” parent “would necessarily impair the parents’ right.” Without a biological or adoptive connection to the child, the former partner has no right “to displace the choice made by this fit parent in deciding what is in the child’s best interests.”

The New York court claimed it was still protecting this “substantial and fundamental right” (which it acknowledged as “perhaps the oldest of the fundamental liberty interests”). It did so by saying that it was only recognizing the “parental status” of a non-biological, non-adoptive partner where the person “proves … that he or she has agreed with the biological parent of the child to conceive and raise the child as co-parents.”

This limitation is small comfort. Libertarians inclined to see this as another step toward “freedom” or “equality” for all sexual preferences, or conservatives inclined to shrug it off as the inevitable consequence of Obergefell, are missing the larger point—which is a massive expansion of the power of the state in general, and of judges in particular.

Judge Pigott addressed the latter point, noting that “other states had legislatively expanded the class of individuals who may seek custody and/or visitation of a child.” In fact, New York had done the same, explicitly extending it by statute to siblings or grandparents—but not to those in the position of the petitioner. If the result seems unfair, “such criticism is properly directed at the Legislature;” but judges had, until now, “refused to undertake the kind of policy analysis reserved for the elected representatives of this State.”

In my view, however, the Legislature should not further expand the definition of “parent,” either. The existence of the natural institution of the family is an inherent check upon the power of the artificial institution of the state. Even when the state does create a parental relationship through a legal act (adoption), it does so only when the natural parents are absent, or there has been a convincing showing, with a strong burden of proof, that they are unfit.

Moving away from the limited definition of families as being formed by marriage, biology, or adoption is a move in the direction of the further deconstruction of the family as an institution. Granting greater power to the government to define or even create “family” or “parental” relationships, meanwhile, is a move toward concentrating greater societal power in the hands of the state across the board.

Both trends should alarm not just social conservatives, but anyone who is concerned about excessive concentrations of power in the hands of the government.

by
Travis Weber

June 30, 2016

In declining to hear this case, the Court missed an opportunity to shore up individual freedom and rebuke baseless government harassment of religious believers.

The Stormans owned a pharmacy and did not want to dispense certain drugs that can kill embryos due to their moral and religious beliefs, yet are happy to refer potential customers to other pharmacies who could dispense them. The drugs are carried by more than 30 other pharmacies within five miles of the Stormans’ pharmacy. It seems like there’s a way in this case for conscience to be honored, and the customer to receive their drugs.

Unfortunately, Washington State had put in place regulations barring pharmacies from referring customers elsewhere for religious or moral reasons, despite permitting them to do so for a host of secular reasons.

These regulations were challenged as a violation of the Free Exercise Clause due to their targeting of religious beliefs. The Supreme Court had an opportunity to hear the case, yet unfortunately declined. Justice Alito (joined by Chief Justice Roberts and Justice Thomas) dissented from this denial of certiorari.

As Justice Alito observed in his dissent, “none of [the Stormans’] customers has ever been denied timely access to emergency contra­ceptives.” At the end of the day, the only reason for this law is to disparage the moral objections of those who think differently and force these unwilling pharmacists to play a part in the government’s imposed regime by steamrolling their individual freedom. And now, in permitting a lower court decision against the Stormans to stand, Justices Kennedy, Breyer, Sotomayor, Kagan, and Ginsburg apparently see no problem with letting the state of Washington squash religious freedom by barring referrals tied to religious reasons but permitting them for non-religious reasons.

Now, as Justice Alito put it, the price we must pay is the continued existence of “regulations [which] are improperly designed to stamp out religious objectors.” This price may be acceptable to some for now—at least until it is turned around and applied against them.

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by
Travis Weber

June 28, 2016

Once again, we saw the “abortion distortion” at work in our nation’s high court. The majority opinion first distorted the law governing whether a claim should be procedurally barred in order to let these claims against the Texas law proceed, then it distorted its own abortion jurisprudence governing whether there was actually an undue burden here to find one where one doesn’t exist. The majority went out of its way to support a lower court’s basis for striking down the law (and in doing so, tried to give courts authority to interfere where they shouldn’t), when it actually should have simply deferred to the legislature. The majority’s opinion leaves the state of abortion law more muddled than ever. As Justices Thomas and Alito (joined by Chief Justice Roberts) pointed out in dissents, there can be no doubt that our nation’s high court simply does not apply the law fairly and neutrally when it comes to the issue of abortion. This can only serve to discredit it as an institution.

Majority opinion

Justice Breyer wrote the majority, joined by Justices Kagan, Ginsburg, Sotomayor, and Kennedy. In its opinion, the Court bent the typical rules governing claim preclusion to permit the claims against HB 2 to proceed, then even bent its abortion jurisprudence a fair bit to conclude they imposed an undue burden on a woman’s constitutional “right” to obtain an abortion.

Claims not procedurally barred

The first issue was whether any of the plaintiffs’ claims were procedurally barred under res judicata, a doctrine which prohibits raising the same claim if it has already been raised by the party to the case. The Court said they were not. The Court first held that the plaintiff’s admitted privileges claims were not barred because changed circumstances made the claims raised in this case different than those raised in an earlier case challenging the Texas statute (a dubious holding). It also held that the surgical center claims were not barred even though they were not raised in the earlier case because they were based on a different portion of the statute (also dubious).

Undue Burden

The Court began by laying out its standard: “We recognize that the ‘State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.’ Roe v. Wade, 410 U. S. 113, 150 (1973). But, we added, ‘a statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.’ Casey, 505 U. S., at 877 (plurality opinion). Moreover, ‘[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.’ Id., at 878.”

The justices held that neither the admitting-privileges nor surgical-center requirement “offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, Casey, supra, at 878 (plurality opinion),” and thus “each violates the Federal Constitution. Amdt. 14, §1.”

The Court of Appeals had held that (1) the courts should not consider and balance medical benefits against the burden when applying the undue burden standard (but rather just look at the burden issue), and (2) a standard of lower constitutional scrutiny should apply to abortion issues. The majority in Hellerstedt reversed the Court of Appeals on both these points.

Undue Burden – Admitting Privileges Requirement

The Court heavily deferred to the determinations of the district court (and affirmed the ability of courts in general to make such determinations) on these issues, and claimed that courts can resolve questions of medical uncertainty—not just legislatures. The Court held that courts can and should balance the medical benefits of a law against its burdens.

The Court found that the evidence in the record indicates that the admitting privileges requirement places a “substantial obstacle in the path of a woman’s choice” (quoting Casey). The Court again deferred to district court findings that facilities were closing at the time the law began to be enforced, which meant women had to travel further to obtain abortions, and there were fewer doctors (doctors were also unable to obtain admitting privileges for reasons unconnected to their ability to perform medical procedures), longer wait times, and more crowded facilities. Taken together, and viewed in light of the absence of a health benefit, this list of effects causes an undue burden.

The Court also noted the statute here does not have legislative findings, which weighs in favor of a court having to scrutinize findings more carefully, and heavily deferred to the district court’s evaluation of the evidence—and concluded it found nothing in the record “that shows that, compared to prior law (which required a “working arrangement” with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health.”

The government argued facilities may have closed for reasons unrelated to this law, but the Court found that that the plaintiffs had “satisfied their burden to present evidence of causa­tion by presenting direct testimony as well as plausible inferences to be drawn from the timing of the clinic clo­sures.” When faced with the example of Gosnell, the Court said “there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing stat­utes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations. Regardless, Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years. Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually.”

Undue Burden – Surgical Center Requirement

Again, the Court deferred to the district court and found that the health and safety concerns are not advanced by the surgical center requirement, especially in light of the existing regulation imposed by Texas. The Court credited evidence and deferred to an expert witness at the district court level, and found that many of the law’s requirements were not necessary to regulate abortion, and had the additional effect of placing a substantial obstacle in the face of a woman’s ability to obtain one by making them travel further and disrupting the medical care they would receive. In making these findings, the Court recognized it assumed that medical facilities operate at or near full capacity, and credited what it viewed as “commonsense inferences” by the district court. The court held that Texas had not shown that remaining facilities could accommodate many more women.

In essence, the Court nitpicked the evidence for ways Texas had not perfectly shown HB 2 would advance women’s health, and even when it had shown health benefits, claimed the burden outweighed these benefits (and the law was thus unconstitutional).

Other arguments

The Court rejected the argument that facial invalidation was precluded by the law’s severability clause. It also rejected Texas’ argument that the law did not impose a substantial obstacle because the number of women affected by the law is not a “large fraction” of Texan women of reproductive age. The Court finally rejected Texas’ argument, based on Simopoulos v. Virginia, that surgical center requirements could be applied to second-trimester abortions. The Court noted this was before Casey, which discarded the trimester framework.

Ginsburg Concurrence

Justice Ginsburg concurred, focusing on the claim that child-birth and other medical procedures are “far more dangerous” than abortion, and yet not subject to the requirements Texas attempts to impose here. “Given those realities, it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions.’ Planned Parenthood of Wis., 806 F. 3d, at 910. When a State se­verely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety. See Brief for Ten Pennsylvania Abortion Care Providers as Amici Curiae 17–22. So long as this Court adheres to Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), Targeted Regulation of Abortion Providers laws like H. B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ Planned Parenthood of Wis., 806 F. 3d, at 921, cannot survive judicial inspection.”

Thomas Dissent

Justice Thomas criticized the majority for “perpetuat[ing] the Court’s habit of applying different rules to different constitutional rights—especially the putative right to abortion.”

Quoting Justice Scalia, he said this decision “exemplifies the Court’s troubling tendency ‘to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.’ Stenberg v. Carhart, 530 U. S. 914, 954 (2000) (Scalia, J., dissenting).”

Thomas continues, “[u]ltimately, this case shows why the Court never should have bent the rules for favored rights in the first place. Our law is now so riddled with special exceptions for special rights that our decisions deliver neither predict­ability nor the promise of a judiciary bound by the rule of law.”

He criticizes third-party standing, which permits plaintiffs to sue on behalf of others (and which permitted the claims to be brought in this case in the first place). He observes the Court has made special exceptions for this doctrine in the case of abortion, noting: “There should be no surer sign that our jurisprudence has gone off the rails than this: After creating a constitutional right to abortion because it ‘involve[s] the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy,’ Casey, supra, at 851 (majority opinion), the Court has created special rules that cede its enforcement to others.”

Even under Casey, Justice Thomas notes that the majority alters the undue burden test here by (1) telling courts to balance burdens and benefits of the law instead of just assessing the burden, by (2) making their own medical assessments as opposed to deferring to the legislature, which is permitted to enact a law in the face of a debate within the medical community (Stenberg, supra, at 971 (KENNEDY, J., dissent­ing) (“the right of the legislature to resolve matters on which physicians disagreed” is “establish[ed] beyond doubt”), and by (3) scrutinizing laws for more than a reasonable relation to a legitimate state interest even when the law does not impose a substantial obstacle to obtaining an abortion (“Where [the State] has a rational basis to act and it does not impose an undue burden,” this Court previously held, “the State may use its regulatory power” to impose regulations “in furtherance of its legiti­mate interests in regulating the medical profession in order to promote respect for life, including life of the un­born.” Gonzales, supra, at 158 (emphasis added)).”

Justice Thomas criticized the majority for writing an opinion without any clear standard, which will “mystify” lower courts trying to figure the matter out. The Court merely highlights certain parts of the record, and announces that there is an undue burden. In Justice Thomas’s view, this opinion looks like it’s applying the strict scrutiny standard that Casey had rejected.

He proceeds to criticize the Court’s seemingly ad-hoc application of different standards of review, based on the Court’s preference for the issue, which leads to unpredictability among other issues: “Likewise, it is now easier for the government to restrict judicial candidates’ campaign speech than for the Government to define mar­riage—even though the former is subject to strict scrutiny and the latter was supposedly subject to some form of rational-basis review. Compare Williams-Yulee v. Florida Bar, 575 U. S. ___, ___–___ (2015) (slip op., at 8–9), with United States v. Windsor, 570 U. S. ___, ___ (2013) (slipop., at 20)).”

Thus, “[t]he Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and inter­ests in any given case.”

Indeed, the Court’s preference for special rights and inconsistent application of its standards to cases based on the rights at issue poses significant problems for the Court as a judicial body—this case being only one example. “The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitu­tional rights, while disfavoring many of the rights actually enumerated in the Constitution … Unless the Court abides by one set of rules to adjudicate constitu­tional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.”

He concludes: “Today’s decision will prompt some to claim victory, just as it will stiffen opponents’ will to object. But the entire Nation has lost something essential. The majority’s em­brace of a jurisprudence of rights-specific exceptions and balancing tests is ‘a regrettable concession of defeat—an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application.’ Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989). I respectfully dissent.”

Alito Dissent

Claim is procedurally barred

Justice Alito first criticized the majority for bending the rules of res judicata to accommodate the claim at issue because it concerned abortion. “When we decide cases on particularly controversial issues, we should take special care to apply settled procedural rules in a neutral manner. The Court has not done that here.”

In essence, the majority’s basis for permitting the claims to proceed here is weak, has holes, and has insufficient supporting authority. “The Court awards a victory to petitioners on the very claim that they unsuccessfully pressed in the earlier case. The Court does this even though petitioners, undoubtedly realizing that a rematch would not be allowed, did not presume to include such a claim in their complaint. The Court favors petitioners with a victory that they did not have the audacity to seek.”

Justice Alito observed the majority failed to even address the many elements of res judicata, and in ruling that the claims here were not the same, even erred when it addressed that element!

In essence, the claims are bound together by the law’s impact on the present or future closure of facilities. The claim in this case therefore is the same, had already been raised by the plaintiffs, and therefore should be barred. It doesn’t matter that the plaintiffs have new and better evidence; this doesn’t get around the issue that the claims are the same. The new and old claims are based on the same acts and set of circumstances, and new evidence does not transform them into different claims. The authority cited by the majority—the Comment F to Section 24 of the Second Restatement of Judgments—says a claim may be a different claim, not that it always is. This leeway should be applied sparingly, in Justice Alito’s view, and the majority does not have the authority to conclude as it does. There are no new “acts” here by Texas which even could make these claims different, but only new consequences, if at all. The plaintiffs here knew what the effects of the law would be, and thus have no basis to assert their claims are now different.

The plaintiffs could have provided evidence in their first case to show that facilities would close, yet now “the Court attempts to argue that petitioners could not have shown at that time that a sufficient number of clinics had already closed. As I have explained, that is not what petitioners need to show or what they attempted to prove.”

“Even if the Court thinks that petitioners’ evidence in the first case was insufficient, the Court does not claim that petitioners, with reasonable effort, could not have gathered sufficient evidence to show with some degree of accuracy what the effects of the admitting privileges requirement would be. As I have just explained, in their first trial petitioners introduced a survey of 27 abortion clinics indicating that 15 would close because of the admitting privileges requirement. The Court does not identify what additional evidence petitioners needed but were unable to gather. There is simply no reason why petitioners should be allowed to re-litigate their facial claim.”

“In sum, the Court’s holding that petitioners’ second facial challenge to the admitting privileges requirement is not barred by claim preclusion is not supported by any of our cases or any body of lower court precedent; is contrary to the bedrock rule that a party cannot re-litigate a claim simply because the party has obtained new and better evidence; is contrary to the first Restatement of Judgments and the actual rules of the second Restatement of Judgment; and is purportedly based largely on a single comment in the second Restatement, but does not even represent a sensible reading of that comment. In a regular case, an attempt by petitioners to re-litigate their previously unsuccessful facial challenge to the admitting privileges requirement would have been rejected out of hand—indeed, might have resulted in the imposition of sanctions under Federal Rule of Civil Procedure 11. No court would even think of reviving such a claim on its own. But in this abortion case, ordinary rules of law—and fairness—are suspended.”

The majority erroneously holds that these claims are separate based on weak and inapplicable authority. In reality, these claims are based on the same bill, both impose now requirements on facilities, both seek to protect women, both challenged as imposing the same kind of burden, and are treated by the plaintiffs as a package in terms of their claim that they are trying to “shut down” abortion facilities. There is no doubt they are part of the same litigation.

No Undue Burden

Even if the claims are not barred, there is no undue burden here.

Since plaintiffs assert rights on behalf of their patients, they must show an impact on a “large fraction” of impacted women to obtain facial relief. They fail to do that. They only show that certain facilities closed, but make “little effort” to show why they did.

Justice Alito noted that this law may impact facilities, which is understandable, and even desired in the aftermath of situations like the Gosnell matter. Indeed, “the Philadelphia grand jury that investigated the case recommended that the Commonwealth adopt a law requiring abortion facilities to comply with the same regulations as ASCs.”

However, facilities may have closed because of (1) H. B. 2’s restriction on medication abortion, (2) the withdrawal of Texas family planning funds, (3) the nationwide decline in abortion demand, and (4) physician retirement (or other localized factors).

The plaintiffs could have made precise findings regarding each facility in Texas, and had the burden of proof to do so, but didn’t.

In addition, the plaintiffs simply didn’t put on any evidence of actual facility capacity as it concerned facility access. The majority let them off the hook on this point, even though this was important to determine an undue burden.

Finally, the majority failed to recognize that under Casey, traveling 150 miles is not an undue burden, and a significant majority of Texas women didn’t have to travel that far.

Justice Alito also wrote that even if the claims were not precluded, in applying the severability clause here, the law’s requirements must be held in every city in which it does not impose an undue burden.

Sadly, the Court has to again apply the “abortion distortion” to argue that the severability clause does not apply here, and invalidate the entire statute. Indeed, many non-abortion related provisions of the law are now struck down too.

He concludes: “When we decide cases on particularly controversial issues, we should take special care to apply settled procedural rules in a neutral manner. The Court has not done that here.” The Court’s “patent refusal to apply well-established law in a neutral way is indefensible and will undermine public confidence in the Court as a fair and neutral arbiter.”

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by
Travis Weber

May 12, 2016

Before same-sex marriage was constitutionally enshrined, we heard about how it would not affect anyone’s religious freedom. It was just about access to the marriage license, we were told.

Anyone who thinks opponents of Christian morality are not interested in forcing everyone to conform to their views need only glance at a motion filed in federal court in Mississippi reacting to a law which provides, of all things, exemptions on conscience grounds.

In their motion, this group of opponents asks the court to make sure that anyone “recusing himself or herself under Section 3(8) of HB 1523” be forced to “desist from issuing any marriage licenses to any other couples, including opposite-sex couples.”

Why make this request if access is the only issue? No access to any licenses has been impeded. But we know it is not about that. These opponents are requesting clerks not issue any licenses because they just can’t stand the idea that someone would not agree with their same-sex marriage.

The opponents proceed to read into motives and offer blanket generalizations:

“Thus, although the most recent efforts by the State of Mississippi to disregard the constitutional rights of LGBT Mississippians through HB 1523 may be somewhat more subtle than the “steel-hard, inflexible, undeviating official policy” of the past, see United States v. City of Jackson, Miss., 318 F.2d 1, 5 (5th Cir. 1963) (ordering end of racial segregation in bus and railway terminals), the underlying impulse is exactly the same.” (emphasis mine)

They also mischaracterize the law as “exhorting state residents to discriminate against their gay, lesbian and transgender neighbors in a wide variety of circumstances.” Where is this behavior “exhorted?”

They also want the state to be forced to “post all recusal notices to a prominent place” on a government website. Shaming, anyone?

The real motive is obvious. It’s to force those who now disagree to eventually agree. Nothing more (for now), and nothing less.

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by
Travis Weber

April 27, 2016

After oral argument this morning in United States v. Sterling before the U.S. Court of Appeals for the Armed Forces, there is reason to remain hopeful that the court will see the clear Religious Freedom Restoration Act (RFRA) claim in this case and that the appellant will prevail on that claim. The case, concerning a Marine lance corporal’s posting of verses of scripture at her desk, and subsequent court martial for refusing to remove them, has significant implications for religious freedom in the military.

As Paul Clement, arguing for the appellant, pointed out: the RFRA analysis is straightforward in this case. RFRA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Clearly, posting Bible verses are an exercise of religion. And this exercise was substantially burdened in this case by the special court martial conviction imposed after the lance corporal refused to compromise her religious exercise by taking down the verses. The Supreme Court has found a substantial burden on much less punishment from the government. While not diminishing the unique needs of the military to maintain good order and discipline, Clement highlighted the clear religious freedom violation in this case.

The government tried to dispute the presence of a substantial burden, but the cases on this point are not helpful to the government. Its attorney tried to argue that a hypothetical religious belief requiring adherents to write in chalk on the sidewalk in front of the White House would not be allowed and is therefore not substantially burdened, but this is a flat-out misunderstanding of RFRA! Such a belief may in fact be substantially burdened, but would not be permitted because the government has a compelling interest in the security of that property.

The government also wanted to focus on the need of the lance corporal to obtain some sort of “accommodation,” claiming the way it was handled here showed the “lack of a substantial burden.” But this is a mere attempt to distract from the plain text of RFRA.

Upon questioning from the judges, the government expressly admitted the quite obvious fact that RFRA applies to the military. (One judge seemed to grasp that the government was in a tough spot because RFRA applies to the “government as a whole,” which includes the military.) The government also admitted it didn’t know this was a RFRA case in the trial below, which (if believable)—while not letting it off the hook—further highlights sloppy handling of the claim below. (The lance corporal invoked DODI 1300.17, which contains the same standard as RFRA, and other evidence clearly indicates she was bringing a religious exercise claim). While the government tried to shift attention away from RFRA because a straightforward RFRA analysis is harmful to its case, it is clear that the military knew religious exercise was at play here, and substantially burdened this exercise by court martialing the service member engaged in it.

The government wanted to argue that because the lance corporal (who did not have the helpful assistance of an attorney in the courts below, which the chief judge noted required granting her actions more deference) did not literally say “RFRA” or “Religious Freedom Restoration Act,” she has now waived the religious exercise claim. This is just silly. The government clearly was on notice that her claim was religious.

Paul Clement pointed this out in his closing argument, noting there is no “magic words” test in applying RFRA. In addition, the trial court clearly recognized the religious nature of the postings, he said. Finally, the “accommodation” issue does not decide the substantial burden question! (The government seemed to need help understanding this.) In summary, the lower court falsely applied a far too restrictive understanding of RFRA, and must be reversed, Clement argued.

A win for the appellant in this case is a win for both religious exercise and the readiness of our military as a whole, for our armed forces can only be strengthened as their individual members draw upon faith to face hardship and danger in battle.

What should happen here? As Clement noted, there should be an obvious application of the text of RFRA. When this analysis is conducted, the lance corporal wins. Let us hope the court sees this as clearly as it decides this case in the coming months.

It is reported that Vice President Biden heatedly demanded LGBT supportive compliance—on the part of everyone, everywhere in the world—while in Davos, Switzerland recently.

When it comes to LGBT rights in the workplace the world is looking to you. I know that sounds like hyperbole, sounds like exaggeration, but they look to you. You have more impact than anything the federal government has done, or the Supreme Court of the United States has done, or that Barack Obama and Joe Biden have done, lighting up the White House. You have more impact. You have more impact in countries around the world than we do on those social issues. You literally can change the terms of the debate – not overnight – but collectively you can change the terms of the debate. And shift some public opinion. You actually put governments on notice.

I’ve had it up to HERE with culture. I really mean it. Culture NEVERJUSTIFIES rank, raw discrimination or violation of human rights. There is NOCULTURALJUSTIFICATION. None. None. None.

Aside from the implicit admission that Vice President Biden and others are seeking to force compliance (a point which could involve a whole separate discussion) and his assertion that business has an incredible impact on these issues (he’s correct about that, as we have seen in the United States), what’s most striking is his condemnation of a “culture” which does not believe that certain sexual acts are pleasing to God.

We must assume that Vice President Biden is exempting himself from having “culture.” I doubt he would say that. Assuming that much, what he is really saying then is that certain cultures are the problem and others aren’t. And if he’s saying that, then in condemning other cultures and demanding acceptance of his own, he must then admit that he is demanding allegiance to the object of worship in his culture: its permission and approval of radical, individual, sexual autonomy.

But does any genuine analysis of culture here really matter anyway? We know that Vice President Biden, like so many others, seems eager to follow the political winds and to embrace, and be embraced by, social approval from cultural elites. After all, this is from the man who at one time voted in favor of the Defense of Marriage Act and “Don’t Ask, Don’t Tell.”

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by
Travis Weber

October 13, 2015

Last week, a number of scholars and law professors released a statement calling on all officeholders to resist — within the grounds of their own constitutional authority — the Supreme Court’s illegitimate and groundless ruling in Obergefell v. Hodges. The scholars’ statement points to the grave consequences of letting this decision continue to be treated as legitimate and binding precedent on the entire nation, and urges public officials to exercise their independent authority to follow the Constitution regardless of Obergefell’s dubious claims:

One lacking anything remotely resembling a warrant in the text, logic, structure, or original understanding of the Constitution must be judged anti-constitutional and illegitimate. Obergefell should be declared to be such, and treated as such, by the other branches of government and by citizens of the United States.

The authors of the statement remind us that the Supreme Court is not the only branch of government granted authority by the Constitution. While the Supreme Court has the authority and responsibility to decide cases and controversies between parties, it does not have the authority to declare entirely new doctrines of law binding on parties not before the court.

Quoting President Lincoln, the authors observe:

In 1857, Abraham Lincoln said, “Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.” If a decision “had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.” If, however, a decision is “wanting in all these claims to the public confidence,” it is “not factious” to resist it.

The authors quite understandably conclude that “Obergefell is wanting in all these claims to the public confidence. It cannot therefore be taken to have settled the law of the United States.”

They conclude:

The proper understanding and definition of marriage is self-evidently a vital question affecting the whole people. To treat as “settled” and “the law of the land” the decision of five Supreme Court justices who, by their own admission, can find no warrant for their ruling in the text, logic, structure, or original understanding of the Constitution, would indeed be to resign our government into the hands of that eminent tribunal. That is something that no citizen or statesman who wishes to sustain the great experiment in ordered liberty bequeathed to us by our Founding Fathers should be willing to do.

At Family Research Council, we recognize the Supreme Court as the highest court in the land, charged with adjudicating disputes between parties and determining those parties’ rights under the Constitution. However, the Supreme Court lacks the authority to decide the meaning of certain matters, one of which is an institution — marriage — which predates civil government and is only defined by God.

This must not be forgotten — neither by public officials nor those they are supposed to serve.

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by
Rob Schwarzwalder

September 8, 2015

In Kentucky, Rowan County Clerk Kim Davis has just been released from jail for refusing to issue marriage licenses to same-sex couples.

There is a lot of misunderstanding about the nature of Mrs. Davis’s case. Various Christian writers have argued that she is embarrassing Evangelical faith, that she simply should resign, that Christian leaders’ rhetoric defending Mrs. Davis is overheated, etc.

What they are failing to consider are two essential concepts that underlie the Davis case. They are these:

Accommodation. Does not Mrs. Davis deserve some kind of accommodation? We accommodate so many other religious beliefs in both government and private-sector workplaces. Can we not find one for Mrs. Davis and others like her who, out of the integrity of their consciences, cannot do something that abrades the very core of their religious convictions?

That’s why FRC is asking Kentucky Gov. Steve Beshear to call “for a special legislative session and establishing statutory accommodations for clerks like Kim Davis.” As noted by legal scholars Craig Bertschi (Kilpatrick Townsend law firm) and Nathan S. Chapman (University of Georgia School of Law) in their brief on behalf of Hobby Lobby, “the Free Exercise Clause requires some religious accommodations;” in point of fact, some 2,000 such accommodations now exist. As they write in the conclusion of their brief, “When Congress provides religious accommodations consistent with the government’s compelling interests, including its interests in protecting third parties, it supplements, rather than contradicts, the Religion Clauses’ protection of religious liberty.”

The federal government has a “compelling interest” to honor the freedom of religion. As the Founders argued, duty to God precedes duty to the state. This precept is essential to the very heart of our system of government. The same can be said of state governments as well.

Burden. The same-sex couples seeking marriage licenses have many other venues from which to obtain them. There are other, simple, only marginally inconvenient ways for them to obtain them.

The Religious Freedom Restoration Act (RFRA), passed by the U.S. Senate 97-3 and signed by President Clinton in a major public ceremony, makes this clear.

At the signing ceremony, the President said, “This event assumes a more majestic quality because of our ability together to affirm the historic role that people of faith have played in the history of this country and the constitutional protections those who profess and express their faith have always demanded and cherished.” Note his choice of word – both “profess” and “express.” Faith that is merely emotional or intellectual but whose public expression is stultified is not the kind of active faith to which religious devotion calls its followers.

Additionally, Kentucky has a RFRA which similarly requires the state government to offer an accommodation to people like Mrs. Davis unless the government can prove it has a compelling interest to advance and is doing so in the least restrictive way possible.

Writing in The Public Discourse, Kim Colby, Director of the Center for Law and Religious Freedom at the Christian Legal Society, says RFRA “incentivizes government officials to find mutually beneficial ways to accomplish a governmental interest while respecting citizens’ religious exercise—a win-win solution for all.”

Put simply, Mrs. Davis is being burdened in a manner wholly unfamiliar to those advocates of religious liberty who drafted and enacted RFRA only 22 years ago. The burden imposed on her is an unfair one for a simple reason: There are other recourses for those same-sex couples seeking legal legitimation of their unions.

For example, as Newsweek reports, Mrs. Davis’s attorneys have argued there are options “other than mandating the clerk’s name on all marriage licenses. They (range) from having the county judge executive issue the licenses to allowing a deputy clerk to issue them devoid of Davis’s name or authority as Rowan County Clerk.” Indeed, as reported in today’s Washington Post, “The licenses issued Friday (September 4) were altered to remove Davis’s name. They now say they are issued in the office of ‘Rowan County, Rowan County County Clerk’.”

In other words, there are ways in which same-sex couples can obtain marriage licenses that respect Mrs. Davis’s religious conscience and that do not unduly burden those couples in their pursuit of marriage licenses. And clearly, Kentucky has not met its state RFRA’s requirement that the government advance any interest in the least restrictive way possible.

This situation casts into large and vivid relief the kinds of issues the Supreme Court’s 5-4 ruling redefining marriage has placed before the country. Religious liberty in its fullest sense is at stake.

Surely, for Kim Davis and myriad Americans like her, accommodations can be found and unnecessary burdens lifted.